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LGBT RIGHTS IN INDIA AND USA : A COMPARATIVE ANALYSIS – By Pratika Kanwar Chouhan
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Article Details
LGBT RIGHTS IN INDIA AND USA : A
COMPARATIVE ANALYSIS
Written by Pratika Kanwar
Chouhan
3rd year LLB student, Manipal University Jaipur
TABLE
OF CONTENTS
•
Abstract
•
Introduction
•
LGBT rights in
India
•
LGBT rights in
USA
4.1.
The constitutional basis of LGBT equality
4.2.
LGBT in schools
4.3.
LGBT demanding special rights and preferential treatment
4.4.
LGBT protection against discrimination
4.5.
Domestic partnership
4.6.
Supporting same sex marriage
4.7.
Sodomy law and working to protect them
•
A
comparative analysis between the LGBT people of India and USA
•
Conclusion
•
References
ABSTRACT
LGBT has become a widely accepted community for minorities
based on sexual and gender orientation. All members of these subgroups are
subject to similar preconceptions rooted in beliefs and traditions about
sexuality and gender. LGBT people, as members of a social minority group, are
facing hardships from various forms of socioeconomic and cultural maltreatment.
Due to the lacks of social recognition it has an effect on the LGBT people to
completely enjoy their rights as citizens. They moreover experience bigotry,
discrimination, harassment, and even the threat of violence due to their sexual
orientation. Sexuality is linked to social oppression ideologies and structures
such as patriarchy, capitalism, and fundamentalism. Hence, the struggle for
these rights cannot be separated from human rights struggle for political,
social and economic liberation. In this
paper I will be highlighting about the rights of the LGBT community in India
and USA as LGBT rights are human rights and everyone is equal in the eyes of
law, will also analyze and compare the situation and rights of the LGBT
community between the two countries India and USA.
Keywords: LGBT, Human rights, Equality, fundamental rights.
INTRODUCTION
The word LGBT stands for lesbian, Gay, Bisexual, and Transgender
these are used to identify people’s sexual orientation or gender identity of
homosexuals. At first this community was known as the Gay community. But only
the term gay was not sufficient to include the ones who are different from
normal human beings altogether in the gay community as it refers to only men.
So, the initial LGBT was introduced in the mid-1980s. The LGBT people have
different sexual orientation than a normal person where sexual orientation
generally includes sexual behavior, social and lifestyle preferences and
self-identification.
The term lesbian refers to women who are sexually attracted to
people of the same gender i.e. to women only. They are like gay people only but
only men are included in gay whereas only such women are called lesbians. They
are not at all attracted to the people of opposite gender.
A Gay is used to refer to the people who are attracted to the
people of same gender. But the Lesbians, Bisexual, and Transgender are not
included in the gay community.
Transgender is an umbrella term used to describe people whose
gender identity differs from that usually related with their birth sex. Not all
the people whose appearance or behavior is gender-atypical will be identified
as a transgender person. Transgender people can be identified as transvestite,
transsexual or another gender identity.
A bisexual person is referred to a person who is sexually or
emotionally attracted to the people of both sexes. They are not only attracted
to one gender but finds interest in both the genders.
This initialism has become prevalent as self-identification and
many of the countries have adopted this initialism to identify their sexuality
and gender-identity based community centers and focuses on gender-based culture
and diversity of sexuality. It indicates anyone who is non-heterosexual.
LGBT Rights in
India
The references of homosexuality were found in pre-colonial
societies in India. Homosexuality was regarded as a major offence in Manusmriti
and maltreatment/punishment was there for such an offence. Belonging to this
community at that time in manusmriti was regarded as a serious offence and for
this offence there were serious punishment. Even in Islamic period, the Muslim
Shariat law homosexuality was a serious offence. Therefore in different
religions there were different punishments for homosexual offences in India.The
codification of laws began during the British period, the first enactment of
uniform penal laws in India in 1860. In the form of Unnatural offences, its
nature and punishments has been prescribed in the uniform prescription of
homosexual behavior under the Indian Penal Code (IPC). In fact in India this
group of sexuality minority has always existed whether it’s in invisibility and
quietness or culturally sanctioned, their issues/problems have never been taken
seriously. Before 19th century these issues were only limited to the
society but after this century the rights of LGBT minorities raised their
issues relating to the violation of their basic human rights. These serious
issues came into light through different civil organizations in the society in
India. In India the first gay magazine was Bombay Dost which came in the 1990
and the beginning of a lesbian collective in Delhi called sakhi, lesbian, gay
and bisexual issues were first vocal in a public forum. After the publishing of
this magazine this LGBT minority movement in India increased.
In the final decade of 20th century the
lesbian/gay/bisexual/transgender movement brought to the force the rights of
those discriminated on the basis of their sexuality. There were movements taken
place and rights given to this community in various countries at that time.
People were fighting for their human rights, right to privacy, discrimination
on the basis of their sexuality and equal rights for this minority and while
the scope of human rights were protracted to add hitherto marginalized
communities globally , this kind of development was yet to take place in India.
In fact, most human rights organizations in India did not
address to question the rights of lesbian, gay, bisexual, transgender and
others who were dominated due to their sexuality.
Sexuality is sometimes viewed in liberal and radical circles as
an illiberal and pointless issue. Sometimes homosexuality is verifiably seen as
abnormal which is guarded as an individual opportunity yet not a matter of need
for the human rights development. Issues of gender, poverty and caste
oppression are given more importance than the issue of sexuality.
In 2009, The Delhi high court decision on Naz Foundation v.
Govt. of NCT of Delhi found section 377 and there were other legal conditions
against adult, private, consensual, and non-commercial same-sex strategy which
were in direct violation of fundamental rights given by the Indian constitution
(Naz foundation was the NGO, which raised the issue of LGBT in India in 2001 in
Delhi high court).
Section 377, Unnatural offences: Anyone who willfully has carnal
intercourse against nature with a man,
woman or animal shall be punished to life imprisonment or imprisonment for any
reason for a period of up to ten years, and
also punishable by a fine.
Explanation: Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.
The Ministry of Home affairs on 23 February 2012, conveyed the
opposition to decriminalize homosexual activity, stating that homosexuality is
seen as being immoral in India.
The Supreme Court on 11 December 2013 set aside the order of
the Delhi high court about decriminalizing consensual homosexual activity
within its jurisdiction.
According to human rights watch it demonstrated worry that the
SC administering will render same-sex couples and other people who have came
out about their sexuality after the high court’s decision powerless against
police provocation, saying that the Supreme Court’s decision is disappointing
aspect to humanity, and the basic rights to privacy. The Naz foundation said
that it would file a petition for review of the court’s decision. After the
ruling of 2013, the two-fifths of the homosexuals in India faced blackmailing,
reported by activist Kavi Humsafar’s trust.
The Supreme Court of India on 28 January 2014, dismissed the
review petition filed by the Central Government, the Naz foundation and few
others against the 11 December verdict on Section 377. The bench said:
"When reading Section 377, the High
Court forgot that a tiny fraction of the country's population is lesbian, gay,
bisexual or transgender people, and in more than a hundred and fifty years past,
less than 200 individuals have been prosecuted for committing the offence under
Section 377, and this can not be created a sound basis for declaring that
section ultra vires Article 14, 15 and 21.
There was a bill introduced for the repeal of section 377 but
it got rejected within the house which was introduced by Shashi tharoor on 18
December 2018, who is a member of Indian National Congress.
The Supreme Court on 2 February 2016, decided to review the
criminalization of homosexual activity. On August 2017, the Supreme Court
collectively ruled that the Right to individual privacy is an intrinsic and
fundamental right under the Indian constitution. The court also ruled that a
person’s sexual orientation is a private issue, which’ type of gave hope to the
LGBT community that section 377 will soon be stroked down.
The Supreme Court in January 2018 agreed to refer the question
of section 377’s validity to a large bench and heard several petitions on 1 May
2018. In response to the court’s request for its position on the petitions, the
government announced that it would not oppose the petitions, and would leave
the case to the court.
A hearing began on 10 July 2018, with a verdict which was
expected before October 2018. This case is viewed as the most significant and
greatest breakthrough for Gay rights since the country’s independence, and it
could have be a great hope for the countries that still outlaw homosexuality.
2018 Navtej Singh Johar v. Union of India
Later that year, the constitutional bench of the supreme court
consisting of Dipak Misra (chief justice) and Dhananjaya Y. Chandrachud, Ajay
Manikaro Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman (5 justices)
started the hearing of the challenge to constitutionality of section 377. The
union government did not participate in this issue of section 377 and left it
to the court. To argue against the section 377 the petitioners appealed to the
right to sexual privacy, dignity, right against discrimination and freedom of
expression. After listening to the petitioner’s plea for 4 days, the court
reserved its verdict on 17 July 2018. The bench gave its verdict on 6 September
2018. Announcing the verdict, the court explicitly overturned its own 2013
judgment of recovering section 377 by asserting that using section of IPC to
victimize the homosexuals was unconstitutional and therefore a criminal act.
The Supreme Court asserted that consensual sexual acts adults cannot be a crime
deeming the law before “absurb, inconsistent and unfathomable. In fact it said
that any kind of discrimination on the basis of sexual orientation is a
violation of the fundamental right of freedom of expression in the Indian
constitution.
The Supreme Court also directed to take all the precautions to
transmit the fact that homosexuality is not an offence.
The judgment also included that it cannot be revoked again
under the “Doctrine of progressive realization of rights”.
LGBT rights in
USA
Lesbian, Gay, Bisexual and Transgender individuals has a vast
background in the United States which incorporates social, strict
acknowledgment and legitimate rights. LGBT rights in USA were been legalized by
the Supreme Court of United States, but the rights are different from
jurisdiction and discrimination in jobs and housing is legal in many states.
The equality law which is present in the United States congress would outlaw
discrimination based on sexuality and gender identity nationwide.
Despite all the developments into the American mainstream, LGBT
people however tend to face significant prejudice in all the aspects of life.
There is no federal law which prohibits an individual from being fired at work
or refused a job based on their sexual orientation. The nation’s biggest
employer the U.S. Army discriminates openly against the homosexuals and lesbians.
Mothers and fathers lose the custody of their child because of their sexuality
which is being gay or lesbian and the right to marry is denied to gay people.
One of the states even tried to leash the gay men and lesbians
out of the process which used to pass laws. Colorado in 1992 implemented
Amendment 2, repealing existing state laws and securing future laws to protect
gay men, lesbians, and bisexuals from any kind of discrimination. It was
overturned by the U.S. Supreme Court in the 1996 in Romer v. Evans judgment.
‘Amendment 2 classifies homosexuals not in order to achieve a
proper legislative end, but in order to make them unequal to everyone else.
Colorado can’t do that. The state can not so deem a community to be a stranger
to its laws.’- Justice Anthony Kennedy (Majority opinion in Romer v. Evans I)
In June 1969 a modern gay right began dramatically in Greenwich
Village of New York. During a standard raid, the police attempted to arrest
people for simply their presence in a gay pub, but the people of the Stonewall
Inn fought back and the gay rights movement was born. Using a number of
grassroots and litigation strategies employed by several other activists in the
20th century, gay rights advocates have made good progress:
•
There are 10
states, The District of Columbia, several municipalities and many businesses
and institutions now ban employment discrimination
•
There is a
“Domestic partnership” programs which exists in many municipalities and a
larger number of private institutions, including several country’s largest
corporations and universities.
•
The Sodomy
laws, was commonly used to justify discrimination against the people of this
community, which existed once nationwide; they are currently on the books in 18
states and Puerto Rico.
In fact the raised empowerment of LGBT community has brought ev
en more open and fatal anti-gay resentment:
•
Though
not related to an individual’s power, the criterion for employment decisions in
most states and municipalities may still be sexual preference both in the
public and private sectors.
•
Serious
hate crimes, such as the 1998 murder of a student of Wyoming, Matthew Shephard,
represent a horrific backlash against the LGBT people or individuals considered
to be gay.
•
There
is discrimination and harassment faced by LGBT students and teachers in the
schools, and LGBT student groups in colleges and schools still face
roadblocks.
In 1986, the American
Civil Liberties Union formed a new lesbian and gay rights project after more
than two decades of advocacy for lesbians and gay struggles. Working closely
with ACLU affiliates across the nation, the project oversees the nation’s
largest gay rights legal network. Increasing opposition from a well organized
and well funded alliance of radical extremists and fundamentalists promises
several fights and threats ahead.
The
Constitutional basis of LGBT Equality
There are a variety of basic constitutional values in the fight
to ensure the legal equality of LGBT people.
The 14th and 15th amendments guarantee
equal law protection and many federal, state, and local civil rights
legislation is strengthened. While, at the time of the end of civil war, the 14th
amendment was intended to ensure African Americans legal equality, it was
enacted by congress as a general promise for equality and the court has
interpreted the equal protection clause as a ban against discrimination against
people on grounds of gender, ethnicity, and disability. The ACLU argues that
discrimination based on sexual identity is forbidden under the equal protection
clause.
The 4th, 5th, 9th, and 14th
amendments guarantee the right to privacy or the right to be left alone.
Griswold v. Connecticut enacted a state law in 1965, banning married couples
from receiving contraception’s. The 1972 case of Eisenstadt v. Baird judgment
acknowledged unmarried person’s right to contraceptives and Roe v. Wade
recognized the right of women’s reproductive options in 1973. All these rulings
of the Supreme Court underline the concept of independent decision making about
intimate relationships should be according to the individuals.
Freedom of speech and association are protected in accordance
with the 1st amendment. This alteration defends the option to
compose and encourages the government to end this separation of discriminating
LGBT and getting them and pass enactment restricting private segregation. This
also requires the right to create social and political groups, to socialize,
march or demonstrate nonviolent, generate gay themed art and talk about LGBT
issues publicly.
•
LGBT in schools
Nothing is more essential than supportive and welcoming schools
for the LGBT youth who often face tremendous hostility from their families and
society during formative years. This includes kids from brutality, ensuring
there privileges to arrange occasions and clubs and guaranteeing that gay
instructors who may fill in as a sound example ought not themselves be
defrauded by segregation. The ACLU fought harassment against students in
Nevada, Ohio, California, and Washington, supported gay teachers in California,
Utah and Idaho and advocated for gay student groups in Minnesota, Indiana,
Utah, Wisconsin, and Alabama.
LGBT demanding
special rights and preferential treatment
According to the explanation given by the Supreme Court in
Romer v. Evans, there is nothing unique about legislation that prohibits people
from losing jobs and homes because of whosoever they are. The court has
confirmed that many people have right to participate, either because we have a
legal right or because we are not discriminated. Legislation that forbids
discrimination grants LGBT people the basic rights to engage fairly in their
communities.
Most Americans do not recognize that there is no legal redress
for many LGBT people facing discrimination against LGBT individuals. Extending
discrimination protection to LGBT individuals is one of several important
struggles in front of ACLU and other advocacy institutions.
LGBT
protections against discrimination
There are 12 states (California, Hawaii, Maryland, Connecticut,
Minnesota, Massachusetts, New Hampshire, New Jersey, Nevada, Rhode Island,
Vermont and Wisconsin). The District of Columbia has adopted laws to protect
gay, lesbians and bisexual people from discrimination on their jobs, in many
municipalities and hundreds of business and universities. Fewer jurisdictions
are safeguarding transgender people.
But discrimination against LGBT persons remains perfectly legal
in most local communities in the remaining 38 states. Companies openly fire the
LGBT workers and lesbian and gay Americans are refused jobs every year and
access to housing, hotels, and other public accommodation. Many more are forced
into hiding their lives, denying their families and lying about their loved
ones.
The ACLU argued that the best way to rectify discrimination is
to modify all existing federal, state and local civil rights laws and
discrimination should be banned on the basis of sexual orientation in existing
business and universities polices.
Domestic
partnerships
Many cities have established Domestic Partnership registries,
including New York, Los Angeles, San Francisco, Atlanta, Minneapolis and
Columbia. Official status is given to same-sex couples who register with the
city. The Government and private companies identify the domestic partnerships
of their employees. The state Hawaii recognizes its domestic partners.
While these laws do not confer most of the rights and
responsibilities of marriage, they grant partners some of the recognition which
is granted to married couples usually the rights to visit sick or dying
partners in hospital, sometimes and
depression leave and in a few cases, health insurance and other important
benefits.
Sometimes as important as that these policies gives small
recognition to the intimate, committed relationship that is central to the
lives of so many lesbians and gay men that society ignores otherwise.
Supporting same
sex marriage
The denial of lesbian and gay couple’s right to wed is no more
than a denial of the social and spiritual meaning of matrimony but also it has
tragic, practical consequences. Since they cannot marry, lesbian partners and
gay men are not next to each other in times of crisis; they are not consulted
on crucial medical decisions; they are not allowed to care for them; they are
not legal heirs of each other, if like most Americans they have no will.
Marital status is often the basis on which employers extend health insurance,
pensions and other benefits. The ACLU believes that since we have such
attributed ormous social consequences to marriage, it infringes equal
protection of the law to deny lesbian and gay couples the right to wed.
Sodomy law and
working to repeal them
Sodomy laws typically forbid oral and anal sex, even among
adults who agree. Penalties vary from $200 fine to 20 years imprisonment for
the violation of sodomy rules and these vary state by state. While
heterosexuals or lesbians or gay men are subject to most sodomy laws, they are
mostly used against homosexuals. Some courts, for instance says that sodomy
legislation justifies separating homosexual parents from their children. In
some towns sodomy laws are used to prosecute gay people in discussions that are
held every day in relation to sex.
The legislatures of Pennsylvania, Nevada and Rhode Island have
joined the other 23 national legislatures in recent years, which abolished
sodomy laws in the 1960s and 1970s. The laws have been created for courts in
Georgia, Maryland, Montana, and Tennessee. In legislative and courts the
remaining sodomy laws are questioned before all of them are repealed.
A comparative
analysis between the LGBT people in India and USA
On 6 September 2018 the
Supreme Court of India invalidated part of section 377 of the Indian Penal code
making homosexuality legal in India, striking down the colonial-era law that
made gay sex punishable by up to 10 years in prison, one of the judges said
that landmark decision would ‘pave the way for a better future of the LGBT
community’
Whereas in US in the 1969 Stonewall riots in New York City was
the beginning of the modern gay civil rights. In late 20th century,
social acceptance began to increase and legal rights followed.
In India in spite making homosexuality legal the LGBT people
are still denied educational and training opportunities due to harassment,
bullying, and violence.
In the USA the LGBT fight started long back and still there are
major issues like the gay people don’t have the right to marry. The many rights
of same-sex couples will acquire if same-sex marriage is legalized. And there
are some of the benefits same-sex couples could receive if married:
•
Automatic assumption of spouses
pensions
•
Automatic inheritance
•
Automatic housing lease transfer
•
Joint parenting
•
Child custody.
The gay rights movement in the United States has experienced
historic success in recent years. But progress in the associated transgender
movement has lagged behind in comparison to transgender people in India. In
fact in India justices has extended legal rights and equality to transgender
people. In US state laws should be streamlined and updated to permit
transgender people to change their names or legal sex on official documents
without requiring invasive surgeries.
In 2012, in India a guide titled ‘creating inclusive workplaces
for LGBT employees in India’ was developed by IBM, Goldman Sachs, and Google
together with the community business, a non-profit organization.
In US, Seattle area opinion columnist and rights activist Dan
Savage participated with his husband in making of a video which encouraged
children and teenagers to avoid and overcome peer bullying, inaugurating an
ongoing series of videos by politician, media personalities, business leaders,
activists and others both within and outside the United states which was listed
under ‘it gets better project’.
Conclusion
People around the world face violence and inequality,
maltreatment and even execution because of who they love, how they look, who
they are. Sexual orientation and gender identity are important aspect of our
selves and should never lead to discrimination or abuse.
Regardless of our sexual orientation, every single person is at
risk for emotional or psychological difficulties coming from a variety of
issues. LGBT people not only have to come to terms with their own sexuality or
gender but they have to overcome the homophobic attitudes and misunderstandings
of those around them.
There should be equal rights for LGBT community in all the
aspects as even if the fight for the rights of LGBT started long back in the
USA but there is still discrimination on the basis of sexuality and as in India
the rights were given recently but there is still a long road to go for LGBT
LGBT rights are human rights and these people should also be
treated equally and there should be more rights given to them so that they
don’t face the problems they are facing in their everyday life. There should be
more policies formed for them and in society also people should be aware and
spread awareness that the people belonging to this community are not different
but are one of us only. Everyone has the right to make their own choices
whether it is related to everyday lives of people or choosing their partners,
everyone should be free to choose the person they love and should not be
discriminated on the basis of that.
References
Article Information
LGBT RIGHTS IN INDIA AND USA : A COMPARATIVE ANALYSIS – By Pratika Kanwar Chouhan
Authors: Pratika Kanwar Chouhan
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/11/10
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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